158 F. 561 | 3rd Cir. | 1908
Lead Opinion
The plaintiff in error was tried, convicted, and sentenced upon an information, the gravamen of which appears to be that it, the Camden Iron Works (a corporation), had received from the Mutual Transit Company, a rebate from a rate for transportation of property, which was published and filed with the Interstate Commerce Commission by the said transit company and certain designated railroad companies; but, without pausing to consider whether any crime was sufficiently alleged, we pass at once to the broader and less technical question, whether there was any evidence upon which, as to the offense intended to be charged, the verdict of guilty that was rendered could be sustained. Wiborg v. United States, 163 U. S. 632-638, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289. That offense was created and defined by the act of February 19, 1903, entitled “An act to further regulate commerce,” etc. (32
“It shall be unlawful for any person, persons or corporation to offer, grant or give, or to solicit, accept or receive, any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign-commerce, by any common carrier subject to said act to regulate commerce, and the acts amendatory thereto, whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. Every person or corporation who shall offer, grant, or give or solicit, accept or receive any such rebate, concession or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty thousand dollars.”
The plaintiff in error admits its receipt of the sum of money specified in the information, but insists that it was not a rebate within the statute, because, as argued, the Mutual Transit Company, by whom and from whose funds it was paid, was not “subject to such act to regulate commerce,” and was not “required” to file, and had not filed, any tariff in respect of the transportation in question. The facts material to this insistence may be briefly stated. The Mutual Transit Company was a carrier by water only, having a steamship line on the Great Calces from Buffalo and Fairport to West Superior. It agreed with the Camden Iron Works to “protect” a rate of 45 cents per hundred pounds for the transportation from-the point of origin to Winnipeg, of certain iron pipe which the Camden Iron Works proposed to ship from Florence and Camden, in New Jersey, and from Emaus, in Pennsylvania, to Winnipeg, in the Dominion of Canada, and the route designated by the transit company, and assented to by the Camden Iron Works, was, as to the pipe from Camden and Florence, after its lighterage to Philadelphia, thence by the Baltimore & Ohio Railroad to Fairport, thence by the Mutual Transit Company’s steamship line to West Superior, and then by the Great Northern Railway and the Canadian Northern Railway to Winnipeg; and, as to the pipe from Emaus, by the Philadelphia & Reading Railway and the Lehigh Valley Railroad to Buffalo, thence by the Mutual Transit Company’s steamship line to West Superior, and thence by the Great Northern Railway and the Canadian Northern Railway to Winnipeg. After the pipe had been shipped, the Baltimore & Ohio Railroad Company and the Philadelphia & Reading Railway Company (neither of them being privy to the Mutual Transit Company’s undertaking for a 45 cent rate) presented bills to the Camden Iron Works at 49% cents per hundred pounds, and, upon this being communicated to the Mutual Transit Company, its representative told the Camden Iron Works to pay the charge of 49% cents and look to the transit company for a return of the amount of the excess over 45 cents per hundred pounds. Accordingly, the Camden Iron Works paid the bills referred to, and then claimed and received from the transit company the amount of said excess, viz., $1,230.59, and this sum it is which the information avers was “then and there a rebate and concession in respect of the transportation
It is now apparent, we think, that the verdict of guilty in this case ought not to have been sustained, unless, as concerning and affecting the defendant, the Mutual Transit Company was subject to the act to regulate commerce, and a party to some tariff or tariffs “published and filed * * * as is required by said act”; and whether or not it was subject to that act depends upon whether or not it was “engaged in -the transportation of passengers or property wholly by railroad” (which, admittedly, it was not), “or partly by railroad and partly by water when both are used, under a common control, management, or arrangement, for a continuous carriage or shipment.” Act Feb. 4, 1887, c. 104, § 1, 24 Slat. 379 [U. S. Comp. St. 1901, vol. 3, p. 3154]. The learned trial judge held, and with unquestionable correctness, “that the water company is not within the interstate commerce act, and is not required to file a schedule of its rates, so long as it is operating independently and over its water route”; but the crucial question, “Was there an arrangement between these companies?” he submitted to the jury, upon an understanding of the scope of the decision in Cin., N. O. & Tex. Pac. Railway Company v. Int. Com., 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935, in .which we are unable to concur. The underlying problem now presented involves the ascertainment, not merely of the meaning of the word “arrangement,” but of the effect which, in this particular case, should be ascribed to the words “common * * * arrangement,” as used in the first section of the act of February 4, 1887, and to the phrase “tariffs published and filed by such carrier,” as contained in the first section of the act of February 19, 1903. The court below held throughout, and finally charged the jury “that, if these goods were shipped on a through bill of lading or any other through document or writing, from any place in the United States to an adjacent foreign country upon a contract of continuous shipment by a water company, partly over railroads and partly over its own water route, and such goods are received in transit on this through writing under a conventional division of charges, such water company must be deemed to have subjected its company to an arrangement for a con-
Finally, it is pertinent to remark that the legislation which has been under examination is- highly penal in its character, and while it is the
Having reached the conclusion that there was no evidence to sustain the conviction of the defendant, and that therefore its request for a direction to the jury to render a verdict of not guilty should have been granted, the judgment of the District Court is reversed.
Dissenting Opinion
(dissenting). The defendant corporation, the Camden Iron Works, was convicted and sentenced in the court below for receiving a rebate of $1,230.59 from freight prepaid by it on interstate shipments of pipe from Philadelphia and vicinity to Winnipeg, Man. These shipments were made by two routes. For conciseness, I refer to the B. & O. shipment as illustrative of the case. The B. & O. R. R. received the shipment from the defendant’s works through a lighterage company and billed it to Winnipeg on a through bill of lading. This waybill routed it by the B. & O. road to Fairport, Ohio, from thence to West Superior, Wis., by the Mutual'Transit Company’s line of steamships, and from thence to Winnipeg by the Canadian Northern and Great Northern R. R. Companies. It recites the shipment was made over the B. & O. and the Mutual Transit’s line at the joint rate of 24% cents per hundred, and at the joint rate of all the companies through to Winnipeg of 49% cents per hundred. The latter rating was an aggregate from the schedule of rates duly published and filed by the B. & O. on its route from Philadelphia via the Mutual Transit Company of 24% cents per hundred from Philadelphia to West Superior," and the joint local ratings in the published schedules of the Canadian Northern and Great Northern from West Superior to Winnipeg of 25 cents per hundred. The fact will be noted that the B. & O.’s published tariff made no rate from Philadelphia to Fairport. The full freight at the through tariff rate of 49% cents per hundred was paid by the Camden Iron Works to the B. & O., and by the latter receipted for on a voucher of the Camden Iron Works, which certified, under the signature of Morton, the traffic agent of the Camden Iron Works, that the freight “account is correct, and the items therein specified duly received and authorized and contracted for.” The Camden Iron Works sent one of its employés with the shipment to accompany it through to West Superior. The through bill of lading was by the B. & O. road delivered, together with the shipment, to the transit company at Fairport; that company carried the pipe to West Superior, where it delivered it, on the through bill, to .the Canadian Northern Railroad Company, and the latter in turn delivered it to the Great Northern, and that company carried it to the consignee at, Winnipeg. On settlement of the freight with the Mutual Transit Company the lighterage company was paid 1% cents per hundred, the B. & O. retained 11% cents and the remaining 36% cents was paid by it to the transit company. This settlement left for the transit company, after paying the Canadian Northern and the Great Northern Railways their published rate of 25 cents per hundred, 11% cents per hundred as its share, which sum, with the 13 cents retained by the B. & O., constituted the 24% cents rate from Philadelphia to Duluth via the Mutual Transit line quoted in the B. & O. published schedule for such freight. The transit company, however, instead of retaining that sum, repaid to the Camden Iron Works 4% cents a hundred, amounting with that paid for other shipments under substantially the same conditions, to some $1,230.59, the result of which rebate was that the Camden Iron Works had its freight carried from Philadelphia to West Superior .(and consequently from Philadelphia to Winnipeg) for $1,230.59 less than the tariff rates between Philadelphia and West Superior.- - For
“It shall be unlawful for any person, persons or corporation to offer, grant or give, or to solicit, accept or receive any rebate, concession or discrimination in respect of the transportation of any property in interstate or foreign commerce, by any common carrier subject to said act to regulate commerce, and the acts amendatory thereto, whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce and the acts amendatory thereto, or whereby any other advantage is given or discrimination is practiced. Every person or corporation who shall offer, grant, or give or solicit, accept or receive any such rebate concession, or discrimination shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than twenty ihousand dollars.”
On the trial of the case, in answer to defendant’s request, the court charged that “unless said Mutual Transit Company is engaged in transportation of property with the Baltimore & Ohio R. R. Company, under a common control, management or arrangement for a continuous carriage or shipment, and unless the government has shown in this case, beyond a reasonable doubt, that the Mutual Transit Company was so engaged in transportation under a common control, management, or arrangement but for a continuous carriage or shipment,” the verdict should be not guilty. The verdict of the jury must therefore be considered as establishing the fact that this interstate shipment was under a common control, management, or arrangement. But apart from the conclusiveness of the verdict, the undisputed facts leave no room to question that fact. That the Mutual Transit Company, being a water line alone, was, so long as it confined itself to such water transportation, excepted from the interstate commerce act is clear. But when, in the words of the act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), it “engaged in the transportation * * * of property * * * partly by railroad and partly by water when both are used, under a common * * * arrangement for a continuous carriage or shipment * * * from one state * * * to any other state * * * or from any place in the United States to any foreign country,” the provisions of the interstate commerce law extended to it. Every such statutory requirement was fulfilled by the facts in this case. As will be seen hereafter, the transit company, instead of confining its operations to water transportation on its own line, contracted to carry the shipment from Philadelphia to Winnipeg; it had no facilities of its own for doing so; it named the B. & O. as its receiving carrier, and such nominee both routed and rated the shipment under a through waybill, partly by rail and partly by water, for a continuous shipment from “one state to another state,” viz., from Philadelphia to West Superior via the Mutual Transit at a 24% cent rate, and from a place in the United States, viz., Philadelphia, to a “foreign country,” to wit, Winnipeg, and not only so, but as noted in the testimony hereafter such through routing was expressly agreed to by the Camden Iron Works, acting by one
“Whenever any carrier filed with the interstate commerce commission or publishes as a particular rate under the provisions of the act to regulate commerce or acts amendatory thereto, or participates in any rates so filed or published, that rate as against such carrier, its officers or agents in any prosecution begun under this act shall be conclusively deemed to be the legal rate and any departure from such rate, or any offer to depart therefrom, shall be deemed to be an offense under this section of the act.”
It will be observed that this provision is one not restricted to a prosecution against the accepting carrier, but extends to “any prosecution begun under this act.” Now, it is clear that until the receipt of this through shipment through freight and through waybill, the transit company was not amenable to the federal act, and possibly it was not bound to accept as such a shipment of interstate freight, for in the case above quoted the Supreme Court says:
“It may bs true that the Georgia Railroad Company, as a corporation of the state of Georgia, and whose entire road is within that state, may not be legally compelled to submit itself to the provisions of the act of Congress, even when carrying, between points in Georgia, freight that has been brought from another state. It may be that if, in the present case, the goods of the .Tames & Mayer Buggy Company had reached Atlanta, and there and then, for the first time, and independently of any existing arrangement with the railroad companies that had transported them thither, the Georgia Railroad Company was asked to transport them, whether to Augusta or to Social Circle, that company could undertake such transportation free from the control of any supervision except that of the state of Georgia.”
Not being amenable to the federal act and free to refuse a shipment as an interstate one on a through waybill, it follows the Mutual Transit Company was not therefore bound to publish any schedule, for there is nothing in the act which requires publication except section 6, which provides:
“That every common carrier, subject to the provisions of this act, shall print and keep open to public inspection schedules showing the rates and fares and charges for the transportation of passengers and property which any such common carrier has established and which are in force at the time upon its route.”
It is true, as stated by the Supreme Court when referring to the above section in Gulf, Colorado Ry. v. Hefley, 158 U. S. 100, 15 Sup. Ct. 802, 39 L. Ed. 910. “After this is a provision in respect to joint rates between connecting carriers. Such carriers are required
“We exhausted the market, and forty-five was the lowest. * * * The Pennsylvania Railroad quoted a rate of forty-nine cents, the Canadian Atlantic quoted a forty-five, the Mutual Transit Company quoted a forty-five.”
He says he never “examined the tariffs or looked to see whether any were filed, or whether they were taking it lower than the tariff through rate.” And this in the face of the fact that he admits he knew there was a rate from Philadelphia to Duluth (Duluth and Superior being the adjoining respective Minnesota and Wisconsin sides of the lake-end waters), and his concession that he may have been told that “the aggregate rates from Philadelphia to Duluth and from Duluth to Winnipeg exceeded forty-five cents,” and the proven fact that the tariff was on file in the B. & O. office in Philadelphia. Among others, Morton applied to one Cappell, the Philadelphia agent of the Great Northern, for rates. The latter came to the office of the Camden Iron Works, and there called by telephone the Mutual Transit Company at Buffalo and requested a rate. Noble, the agent of that company, said he would see, á'nd later reported that his company would take the freight at 45 cents, provided they were allowed to select the route. He later reported the routing ádopted to Cappell, who made the arrangement with Morton to that effect. Morton’s testimony shows his whole dealings were with Cap-pell, who alone was known in arranging the route, in paying the legal freight rate and in arranging for the rebate. Thus Morton says as to the route:
“Q. Did you and Mr. Cappell between you agree upon the routing of this iron pipe? A. Yes, sir. Q. How was the pipe to be routed from Philadelphia? A. By the B. & O. and Mutual Transit and Great Northern and Canadian Northern.”
As to the payment of the freight and arrangement for the rebate being made by Cappell, Morton says:
“When the bills were presented, I found the rate was not according to the contract. I called up Mr. Cappell and asked Mr. Cappell what he wanted to do with it. He said, ‘Pay the bill as presented and the overcharge will be refunded.’ ”
Cappell in his testimony admits that in directing this course he did not consult the transit company. These men were not mere casual shippers or station agents. They were experienced traffic men dealing in large shipments, and in the nature of things conversant with rates. To put such a transaction as this on the basis of a mere overcharge, which might well occur in a small shipment, will not deceive those familiar with the keen competition of rival routes. Standing alone, the full payment of the full tariff freight to the B. & O. and the subsequent repayment of part through the transit company might be alleged as a casual overcharge, but where precisely the same prepayment was demanded by the Philadelphia & Reading in the case of its shipment, the impression that there was a common arrangement, not only of routes, but of rebates, approaches certainty. The instant the question came up Cappell was able to meet it at
Concurrence Opinion
(concurring). Fully concurring in the opinion as above written, and in the conclusion that there was no evidence disclosed by this record that would sustain a verdict of guilty against the defendant appellant, I desire to add, by way of emphasis, the following observations:
The act under which the indictment in this case was found clearly defines in the parts quoted in the opinion of the court the offenses denounced as committed either by the carrier or by the shipper. The offense of the interstate carrier is, briefly stated, granting to a shipper, and that of the shipper accepting from a carrier, subject to the act, any rebate, etc., from the rate “named in the tariffs published and filed by such carrier, as is required by said act to regulate commerce.” Undoubtedly the published and filed tariff rates are the established legal rates against the carriers, and constructively and prima facie notice to shippers, and, so far, the established legal rate as against them. How far this .constructive and prima facie notice may be rebutted, it is not now necessary to decide. The act, however, contemplates and provides for a condition of things, where no tariff has been published and filed by the carrier, from whom the rebate is charged to have been received. In such cases, it is expressly provided that, if the carrier “participates” in any rates so filed or published by another carrier, “that rate as against such carrier, its officers or agents, shall be conclusively deemed to be the legal rate, and. any departure therefrom shall be deemed to be an offense,” etc. It is obvious that such a participating carrier has full knowledge of the “legal rate” thus established against him, and by any departure therefrom knowingly commits the offense denounced.
It is perfectly clear, therefore, that this provision of the act does not, and cannot, establish, as against the shipper, a legal rate, by the mere participation of the carrier in a published rate. Knowledge of the rate established by this participation must be brought home to the shipper before he can be convicted of a crime. To hold otherwise, would place upon the shipper, innocent though he would be of any knowledge of offending — even of a constructive or prima facie scienter, as in the case of a published rate — a burden that the laws of a free country have never imposed. In this view, even if there had been evidence sufficient to submit to a jury, tending to bring home to the shipper this knowledge of a “legal rate” established by “participation” of the carrier, the court below was clearly in error in its charge to the jury that, when such lawful rate was so conclusively established against the carrier, it must also be deemed a lawful rate against the shipper. This, of itself, would make necessary a reversal.
